This
case is about the medical care provided to Brian Maguire, an
inmate who was incarcerated at the Utah State Prison. All
defendants and all claims have been dismissed except for one:
the Fifth Claim for Relief stated in Plaintiffs Amended
Complaint.[1] In this claim, Maguire alleges that from
8:30 p.m. through 5:00 a.m. on the night of June 15-16, 2008,
the "counting officer"-one of John Does #5, #6, or
#7-failed to contact medical to respond to Maguire's
requests for help, following a "man down call" in
which he was treated for seizure symptoms, and failed to
document the requests.[2] Maguire later alleged that Sergeant Jerry
Miller was "John Doe #5."[3]

Before,
during, or after the "man down" incident, Maguire
suffered a stroke. He alleges that Sgt. Miller's failure
to respond to alleged requests for help, failure to take
action before the man down, failure to affirmatively
follow-up on Maguire's condition, and failure to pass on
information about Maguire's condition to corrections
officers taking over the next shift violated Maguire's
Eighth Amendment right to be free from cruel and unusual
punishment, and that such deliberate indifference caused or
exacerbated his stroke.

Sgt.
Miller moved for summary judgment, arguing that he was not
deliberately indifferent to any serious medical need, or, in
the alternative, that the rights asserted by Maguire were not
clearly established on the date of the
incident.[4]Maguire opposed the motion, and oral
argument was held on June 15, 2018. At oral argument, the
Court determined that there is a lack of admissible evidence
to suggest that Defendant Miller acted with deliberate
indifference to Plaintiffs serious medical needs. For the
reasons stated at the hearing, and for the reasons stated
herein, Defendant Miller's Motion for Summary Judgment
will be granted.

FACTS
AND PROCEDURAL BACKGROUND

The
following facts, viewed in a light most favorable to Maguire,
form the basis of the Court's order:[5]

Sergeant
Jerry Miller was, at all relevant times, employed as a
sergeant with the Utah Department of Corrections. He was on
duty in the Uinta 5 unit of the Utah State Prison in Draper,
Utah, at about 7:40 p.m. July 15, 2008 when a "man
down" call came out for Plaintiff Brian Maguire, an
inmate housed in the unit.[6] At that time, Maguire was displaying
symptoms consistent with a seizure: he was convulsing,
shaking, couldn't control his hand, and "flopping
around like a fish."[7] That led other inmates in the housing
unit to call for assistance.[8]

Sgt.
Miller heard the man down call and responded.[9] Two prison
med-techs (EMTs) Craig Jensen and Rodger Macfarlane, who were
already in the building, responded.[10] By the time they arrived,
Maguire was responsive and communicative.[11] The med-techs
took Maguire's vital signs, spoke with him, and
determined that he likely had a seizure.[12] Consistent
with the common practice for treating a seizure, the
med-techs told Maguire to place his mattress on the floor to
ensure that he would not injure himself if he had another
seizure that night and suggested that he see a physician in
the morning.[13] They told him that if he had additional
problems, to alert Sgt. Miller, and then they would come and
talk to him.[14] After the med-techs provided care, they
left.[15]

One of
the tasks to be completed following-the incident was the
"count" of inmates at 8:30 p.m., about forty-five
minutes after the end of the incident.[16] This was a
"stand-up" count where officers required the
inmates to stand up to be counted and had to match the
inmates with a log book containing photographs of their
faces.[17] Two officers are responsible for
completing the 8:30 count.[18]

Though
Sgt. Miller does not remember being part of the 8:30 count,
[19]documents indicate he played a role, and
the Court accepts that he participated in the count for the
purpose of this motion.[20] When one of the counting officers
came to Maguire, the counting officer asked Maguire to get
up.[21] Maguire told the counting officer
"I can't stand up, I can't even sit
up."[22] Though the counting officer threatened
to report Maguire for refusing a direct order, no sanction
came "because obviously [the counting officer] talked to
the other officers that were they, and they told him that it
was a disputation where ... they had received instructions
from medical to leave me on the floor
...."[23]

Maguire
has never described any interaction with Sgt. Miller during
the 8:30 incident.[24] Maguire never alleged that he asked Sgt.
Miller-or anyone-for help immediately following the man-down
incident or at the 8:30 count.[25]

It was
not until 9 or 9:30 p.m. that Maguire himself believed he
needed further medical assistance.[26] Starting at the 10:30
p.m. count (the next count after the 8:30 count), and
continuing on through the night, Maguire specifically asked
the officer performing each count to get medical, because he
was having cramping muscle twitches.[27] Maguire did not yell for
help, or call "man down" as had been done before
because he did not want to disturb any other sleeping
inmates.[28] At some point, perhaps by the 2:00 a.m.
or 3:00 a.m. count, the officers simply stopped coming by
Maguire' s cell.[29]

But
Sgt. Miller was not there to hear any requests for aid, nor
observe Maguire's condition, because Sgt. Miller's
shift ended at 10:00 p.m. that night.[30] After the
8:30 p.m. count, Miller had no more interaction with Maguire
that day.[31]

At the
pill line the next morning, Maguire complained of left-sided
weakness.[32] He was taken to the infirmary, and
prison medical staff sent him to the hospital.[33] He was
diagnosed as having a stroke.[34] He was returned to prison and
was regularly treated for the effects of the
stroke.[35] Maguire was later also diagnosed with
terminal liver cancer, a condition unrelated to the stroke or
seizures.[36] He passed away in 2015 from the
cancer.[37]

Before
he passed away, Maguire sued medical staff, the responding
med-techs, and Sgt. Miller, alleging they were deliberately
indifferent to his serious medical needs, not only in
responding to the man down call, but in a variety of ways in
treating a variety of Maguire's ailments.[38] In a previous
order, a judge of this Court granted summary judgment to most
of the medical staff but denied summary judgment to the two
med-techs and Sgt. Miller.[39] The Tenth Circuit reversed as
to the med-techs, granting them summary judgment, but
determined it did not have jurisdiction to reach Sgt.
Miller's appeal and dismissed it.[40]

The
only claim remaining is Maguire's deliberate indifference
claim lodged against Sgt. Miller. After remand, the parties
engaged in limited discovery, and Sgt. Miller then moved for
summary judgment. In his motion, Sgt. Miller asserts that, as
a matter of law, he was not deliberately indifferent to any
serious risk of harm to Maguire. By raising the defense of
qualified immunity, he also asserts that any rights claimed
to be violated by Maguire were not clearly established at the
time of the incident.

LEGAL
STANDARD

Sgt.
Miller's summary-judgment motion is governed by Federal
Rule of Civil Procedure 56. Summary judgment shall be granted
to the moving party when the record shows "that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a); see also Jones v. Salt Lake County, 503 F.3d
1147, 1152-53 (10th Cir. 2007) (citing former Federal Rule of
Civil Procedure 56(c)). Sgt. Miller has the initial burden to
establish the absence of material fact to support the
non-moving party's claims. Jensen v. Kimble, 1
F.3d 1073, 1076 (10th Cir.1993) (citing Celotex Corp. v.
Catrett, 477 U.S.317, 323 (1986)). In so doing, he may
cite to particular parts of materials in the record
supporting the fact, or may show that the cited materials
"do not establish the absence ... of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). If
the non-movant fails to meet his burden as to one element of
a claim, summary judgment is appropriate on the claim.
Celotex Corp., 477 U.S. at 323

Sgt.
Miller has raised the defense of qualified immunity to
Maguire's claims. Qualified immunity shields government
officials who perform discretionary functions from §
1983 damages suits so long as "their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
Pearson v. Callahan,555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald,457 U.S. 800, 818)
(1982)).

Qualified
immunity "is 'an immunity from suit rather than a
mere defense to liability ... it is effectively lost if a
case is erroneously permitted to go to trial' [and was
created] to ensure that 'insubstantial claims'
against government officials [will] be resolved prior to
discovery." Pearson, 555 U.S. at 231 (quoting
Mitchell v. Forsyth,477 U.S. 511, 526 (1985));
Anderson v. Creighton,483 U.S. 635, 640 n.2 (1987)
(further citations and quotations omitted)). The doctrine
protects "all but the plainly incompetent or those who
knowingly violate the law." Ashcroft v.
al-Kidd,563 U.S. 731, 743 (2011) (citations and
quotations omitted).

When a
state official asserts qualified immunity, she creates a
rebuttable presumption that she is immune from the plaintiffs
§ 1983 claims. See Medina v. Cram, 252 F.3d
1124, 1129 (10th Cir. 2001). Two elements exist in the
qualified immunity analysis-first, whether, under the facts
alleged by the plaintiff, the government officials violated a
constitutional right, and second, whether the right at issue
was "clearly established" at the time of the
defendant's alleged misconduct...."
Pearson, 555 U.S. at 231 (citing Saucier v.
Katz,533 U.S. 194, 201 (2001)).

Thus,
if "at the time of the challenged conduct, the contours
of a right are sufficiently clear that every reasonable
official would have understood that what he is doing violates
the right," the official is not qualifiedly immune.
al-Kidd, 563 U.S. at 741. But if an official
"might not have known for certain that the[ir] conduct
was unlawful!, ] then the [official] is immune from
liability." Ziglar v. Abbasi, ___U.S. ___, 137
S.Ct. 1843, 1867 (2017). The Court may address either prong
of the qualified-immunity analysis first. Pearson at
236.

ANALYSIS

The
only claim remaining in Plaintiffs Amended Complaint-the
active complaint in this case-is the Fifth Claim for
Relief.[41] In it, Maguire alleges that, from 8:30
p.m. through 5:00 a.m. on the night of June 15-16, the
"counting officer"-one of John Does #5, #6, or
#7-failed to contact medical to respond to Maguire's
requests for help, and failed to document the
requests.[42] Maguire later clarified that Sergeant
Miller is "John Doe #5."[43]

As set
forth in detail below, the Court concludes that Sgt. Miller
is entitled to summary judgment because Maguire fails to
identify admissible evidence that suggests Miller acted in a
manner that was deliberately indifferent to Maguire's
serious medical needs. The undisputed facts demonstrate that
Miller adequately responded to Maguire's medical needs
until his shift ended at 10:00 p.m. Thus, the court finds
Miller is entitled to summary judgment on Maguire's
Eighth Amendment claim.

I.
Admissibility of the Maguire Affidavit

On
summary judgment, a court may consider only evidence that
could "be presented in a form that would be admissible
in evidence" at trial. Fed.R.Civ.P. 56(c)(2). Previously
in this case, a fellow judge in this District concluded there
may be a jury question on whether Sgt. Miller was
deliberately indifferent. The Court noted that Maguire stated
in an affidavit that "at every hourly count, at some of
which Maguire recognized [an officer later to be identified
as Sgt. Miller, ] Maguire asked the counting officer to
please call medical."[44] That, combined with Sgt.
Miller's knowledge that Maguire had "(at the very
least) a seizure" led to the conclusion that a jury
could find Sgt. Miller to be deliberately
indifferent.[45]

For
this motion, Maguire argues that this affidavit, combined
with other evidence, indicates Sgt. Miller could have been
deliberately indifferent to Maguire's health because it
supports the propositions that (a) Maguire asked for help
"at every hourly count" (with the inference that
the statement includes the 8:30 count), and (b) that Sgt.
Miller was present for counts after the 8:30 count.

In
addition to arguing that the affidavit does not create an
issue of fact, Sgt. Miller objects to the inclusion of the
affidavit as hearsay not subject to any exception.
Fed.R.Evid. 801, 802, 803, 804. Maguire acknowledges that the
affidavit is hearsay, but argues that the residual exception
to the hearsay rule, found in Federal Rule of Evidence 807,
should apply. The parties thus apparently agree that the
affidavit is hearsay not subject to any express exception.

A.
The Court Declines to Admit Maguire's Declaration Under
the Residual Hearsay Exception

Maguire
requests that the Court apply the residual hearsay exception,
now codified at Federal Rule of Evidence 807, to allow the
admission, and consideration, of the affidavit. The residual
exception "is to be used in extraordinary circumstances
...." United States v. Farley,992 F.2d 1122,
11226 (10th Cir. 1993) (discussing the exception codified in
former Rule 803(24)). The Tenth Circuit has warned lower
courts to "use caution when admitting evidence under
Rule [807], for an expansive interpretation of the residual
exception would threaten to swallow the entirety of the
hearsay rule." United States v. Tome, 61 F.3d
1446, 1454 (10th Cir. 1995).

To be
admissible, the proponent of the evidence must overcome a
"heavy burden" to demonstrate the materiality of
the statement, that it demonstrates "circumstantial
guarantees of trustworthiness" that are
"equivalent" to the exceptions enumerated in Rules
803 and 804, that "it is more probative on the point for
which it is offered than any other evidence that the
proponent can obtain through reasonable efforts ...",
and that its admission will serve the interest of justice.
United States v. Trujillo,136 F.3d 1388, 1396 (10th
Cir. 1998); Fed.R.Evid. 807; see also United States v.
Zamora,784 F.2d 1025, 1031 (10th Cir. 1986); New
England Mut. Life Ins. Co. v. Anderson,888 F.2d 646,
650-51 (10th Cir. 1989) (both interpreting former rule
804(b)(5) and noting the burden on the proponent of the
evidence to meet the exception). There is no doubt that the
affidavit is material. But Maguire fails to shoulder his
burden on the remaining three elements to meet the exception.

First,
there are serious questions of the trustworthiness of the
statement. Though the statement was purported to be made
under oath, that is "insufficient, standing alone, to
meet the requirement of circumstantial guarantees of
trustworthiness ...." Crawford ex rel. Crawford v.
City of Kansas City, Kan.,952 F.Supp. 1467, 1473 (D.
Kan. 1997). Here, there are circumstances that undermine the
affidavit's reliability. For example, Maguire does not
mention Sgt. Miller by name in the affidavit. Utilizing the
document to identify Sgt. Miller as the one responsible
requires logical leaps and an overly-technical synthesis of
numerous facts. This reduces the trustworthiness of the
affidavit.

Also,
the affidavit was originally proffered to the Utah Department
of Occupational and Professional Licensing to support
Maguire's claim of health care misconduct.[46] This was a
document created in anticipation of litigation, affecting
Maguire's motivation to be completely truthful. E.g.,
Wilander v. McDermott Int'l, Inc.,887 F.2d 88, 92
(5th Cir. 1989) (recognizing that statements "prepared
in anticipation of litigation" was a factor in
determining the statement untrustworthy). Beyond the inherent
nature of the document, Maguire's focus in the document
was clearly on the actions of the health care providers who
treated him before, during, and after the man-down call,
rather than the custody staff.

Moreover,
reading the affidavit as Maguire requests creates a conflict
with other evidence in the record. See United States v.
Hall,165 F.3d 1095, 1110-11 (7th Cir. 1999)
(recognizing that whether a statement is "insufficiently
corroborated" is a consideration a district court may
account for in determining trustworthiness). . The affidavit
avers that "Officer #5" performed "at
least" one of the counts later in the
evening.[47] It also avers that Officer #5 was at the
man-down scene. While Sgt. Miller was at the man-down call,
evidence in the record suggests he did not perform any count
identified in the affidavit. Officer #5 was not referred to
in the 8:30 p.m. count (the only post-man-down count that
could have involved Sgt. Miller). Instead, Maguire sets forth
the 8:30 p.m. count in a separate paragraph, describing an
interaction with a different officer (Officer 7). Also, Sgt.
Miller could not have performed any of the counts past 10:00
p.m. because there is no evidence in the record to suggest
Sgt. Miller worked past that time. Accordingly, the affidavit
creates a conflict with other record evidence.

All of
these factors cast doubt on the reliability of a conclusory
statement that (a) Maguire asked for help at "every
hourly count" (including the 8:30 p.m. count) and (b)
Sgt. Miller was involved in "some of the counts (after
8:30 p.m.). Cf. United States v. Fernandez, 892 F.2d
976, 983 (11th Cir. 1989) (recognizing that corroborating
evidence must be "extraordinarily strong" to
support admission of hearsay evidence under former
804(b)(5)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Second,
turning to the relevant probity of the evidence, Maguire
cannot demonstrate that he could not have elicited this
evidence from another source-in particular Maguire&#39;s
deposition. Counsel for Maguire was at Maguire&#39;s
deposition, which was taken to perpetuate his testimony,
knowing Maguire had an unrelated, terminal illness.
Maguire&#39;s counsel did not ask about the affidavit, nor
attempt to put it into context. The only time Sgt.
Miller&#39;s name came up in Maguire&#39;s deposition (other
than a discussion about a discovery issue) was when he was
discussing the man-down incident.[48] Maguire knew about Sgt.
Miller at the time, and he never clarified that he ...

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